3. The electoral and party systems

The Commonwealth Constitution does not govern in detail how members of the House of Representatives and the Senate are to be elected, nor could it dictate the number and strength of Australia’s national political parties and the dynamics of competition among them. The electoral and party systems have a profound impact on the political dynamics in Canberra, including the roles of the two houses of Parliament and the relations between them, so both are summarized here. Special attention is given to a development that has fundamentally affected the balance of power among the parties, the implementation of principles of responsible government, and the practical dynamics of politics in Parliament: the decision made in 1948 that thereafter Senators would be elected by proportional representation.

Electing Representatives and Senators

The procedures for electing Australian Representatives and Senators are considerably more complicated than the procedures for electing their American counterparts. US Representatives and Senators all are elected in essentially the same way—in what often is called the ‘first-past-the-post’ system, but which I prefer to call the constituency plurality system. Each voter casts one vote for the candidate whom he or she prefers to represent the voter’s constituency, whether state or congressional district, and the candidate who receives the most votes is the winner. In Australia, by contrast, members of the Commonwealth Parliament are chosen by a combination of constituency majority and proportional representation (PR) systems, with the use of preferential voting (also known as the alternative vote) for elections to both houses. Also, voting has been compulsory since the general election of 1925.[33]

As in the United States, seats in the Australian House of Representatives are allocated among the states according to their respective populations, and each state then is divided into as many districts (electoral divisions, in Australian parlance) as the number of Representatives allocated to it, so that each division elects a single Representative. The populations of divisions within each state are to be roughly equal, though each original state is guaranteed (by sec. 24 of the Constitution) a minimum of five seats in the House. (By law, each of the two territories is guaranteed at least one seat.) Representatives all are elected at the same time and for a maximum term of three years, though, as we have seen, the House may be dissolved earlier—at some time before its life otherwise would end, in the words of sec. 57, ‘by effluxion of time’.[34]

Until 1918, elections to the House were conducted using the district plurality system.[35] In that year, Parliament decided to continue electing one Representative per district, but also decided to switch from plurality elections to majority elections with preferential voting. Under this system, which has been in place for House elections ever since, each voter marks his or her ballot by numbering all the candidates in order of preference—marking ‘1’ for the voter’s first choice, ‘2’ for his or her second choice, and so on. If a candidate receives an absolute majority of all the first preference votes, that candidate is elected. If not, the votes received by the candidate with the fewest first preference votes are distributed among the other candidates according to the second preferences of that candidate’s supporters. If this redistribution still does not produce a candidate with an absolute majority of votes, the second-least popular candidate is excluded and his or her votes are redistributed in similar fashion, and so on until one candidate does receive a majority of the votes.

The rationale for preferential voting is that it protects against the election of a candidate who receives a plurality, but not a majority, of the votes cast. If more than two candidates run for the same seat, it is quite possible that none of them will receive a majority; most voters will select someone other than the candidate who receives a plurality of the votes. A closely related effect of preferential voting is to encourage more than two candidates to run for the same seat—or to put it differently, for more than two parties to field candidates for the same seat. In plurality district elections, it is typically argued that anyone who contemplates voting for a third or minor party candidate is, in effect, throwing away his or her vote. If the candidate whom a voter truly prefers has no realistic chance of winning, so the argument goes, any voter who selects that candidate thereby gives up the opportunity to affect the choice between the two candidates who actually might win. Under a preferential voting system, a voter can vote for the candidate he or she truly prefers, and then mark his or her second preference for a candidate with a better prospect of winning—the political equivalent of having one’s cake and eating it too. Precisely because of this logic, of course, preferential voting can have the effect of encouraging a multiplicity of candidates and so reducing the likelihood that any one of them will receive a majority of the first preference votes cast.[36]

Senators representing the states are elected for six year terms, with half to be elected every three years at what are known as half-Senate elections, except following a double dissolution of both houses. The six original states (and so far the only ones) are guaranteed equal representation in the Senate and a minimum of six Senators per state. Until 1949, Senators were elected in much the same way as Representatives, except that three or more Senators were chosen in each state at each election. Sec. 7 of the Constitution provides for Senators to be elected on a statewide basis—each state voting ‘as one electorate’—unless Parliament provides otherwise, which it has not done. Thus, until the 1949 election, between three and six Senators were elected statewide at each election, by a plurality system that often led, as we shall see, to one party winning most or all of the seats being contested.[37]

Then, in 1948, Parliament determined that Senators henceforth would be elected by a form of proportional representation involving use of the ‘single transferable vote.’ Under this complicated system, as originally designed, each voter assigns numbers, reflecting that voter’s preferences, to all candidates for however many Senate seats are to be filled; the voter has only one first preference vote, one second preference vote, and so on, even though more than one Senator is to be elected. A ‘quota’ then is calculated that reflects the total number of first preference votes cast and the number of Senate seats being contested. A candidate is elected if he or she receives at least that many first preference votes. If that candidate receives ‘surplus’ votes—i.e., more votes than the quota—those surplus votes are distributed according to the second or subsequent preferences of those who voted for the elected candidate. Then, if after all surplus votes have been distributed and not enough candidates have received the required quota of votes, the votes of the least popular candidate are redistributed according to his or her supporters’ second preferences, and so on, until a number of candidates sufficient to fill all the seats being contested have received the required quota of votes.

When six Senators are elected in a state at the same time, which would be the case today at a normal half-Senate election (six being half of each state’s complement of twelve Senators), the required quota for election is 14.3 per cent of the votes cast. This is one-seventh of the votes cast, or one divided by the number of seats being contested (six), plus one. To be elected, however, a candidate does not have to receive 14.3 per cent of all the first preference votes: ‘a quota of votes may be made up of first preference votes, or of votes transferred from the surpluses of successful candidates and from the transferred votes of excluded candidates, or any combination of these three sources ... ’ Between 1949 and 1984, Sharman calculates, minor party and Independent Senators received roughly two-thirds of the votes needed to constitute a quota in the form of first preference votes, receiving the remaining one-third of their quota ‘from transfers from excluded candidates of the major parties and other minor parties’ (Sharman 1986: 21). During that period, however, a minor party candidate was elected to the Senate having received barely six per cent of the required quota in first preference votes. In 2001, Kerry Nettle, a Green candidate, won a Senate seat in New South Wales with only 4.4 per cent of the first preference votes, beating the Australian Democrat candidate who received 6.2 per cent (Grattan 2002).

The details make the process of electing Senators even more complex than this brief summary might suggest. To illustrate, Sharman (1986) predicted that the 1984 decision to increase the number of Senators per state from ten to twelve would work to the disadvantage of minor party and Independent candidates. One might think otherwise, because increasing the number of seats has the effect of reducing the percentage of votes necessary to win one of those seats: if five Senators are elected, the quota needed to win each of those seats is 16.7 per cent (one divided by six), whereas, as we have seen, with six elected, the quota is 14.3 per cent (one divided by seven). However, Sharman argued, it also is necessary to take into account the difference between electing an even or an odd number of Senators. If an even number is elected (e.g., six), he calculated, there are likely to be fewer major party surplus votes that are available for transfer to minor party and Independent candidates than if an odd number are elected. Therefore, he concluded, increasing the number of Senators elected from five to six actually should damage the prospects of minor party and Independent Senate candidates, not improve them.

Reid and Forrest (1989: 125) quote the Joint Select Committee on Electoral Reform, which recommended the change, as stating in its first report to the Parliament that this is precisely what its members expected would happen, leading Reid and Forrest to infer that the committee ‘clearly had the interest of one or other of the major parties at heart. It assumed that one of the major parties had a right to a Senate majority and that the essential purpose of elections was to determine which one.’ However, Uhr (2002a: 23) argues, the committee and the Parliament ‘failed to take account of the trend in Senate voters’ tactical support away from the major parties to the minor parties, made considerably easier by the reduction in the size of the quota required to win a Senate seat.’

For our purposes, there are two simple points to be emphasized. First, since the general election of 1949, Representatives and Senators have been elected in different ways. And second, this difference in modes of election usually has resulted in different party balances in the two houses. From the perspective of the officers of the House of Representatives (House of Representatives Practice 2001: 94):

The result of proportional representation has been that since 1949 the numbers of the Senate have been fairly evenly divided between government and opposition supporters with the balance of power often being held by minority parties or Independents, whose political influence has increased as a consequence. Governments have frequently been confronted with the ability of the Opposition and minority party or Independent Senators to combine to defeat or modify government measures in the Senate.

There is the not-very-well disguised implication here that the advent of PR for Senate elections has caused a problem. Contrast the characterization in the above quotation with the following statement in Odgers’ Australian Senate Practice (2001: 120):

The 1948 electoral settlement for the Senate mitigated the dysfunctions of the single member electorate basis of the House of Representatives by enabling additional, discernible bodies of electoral opinion to be represented in Parliament. The consequence has been that parliamentary government of the Commonwealth is not simply a question of majority rule but one of representation. The Senate, because of the method of composition, is the institution in the Commonwealth which reconciles majority rule, as imperfectly expressed in the House of Representatives, with adequate representation.

Those who work on one side of Parliament House can argue that the House of Representatives is the more representative body because the weight of each vote cast in House elections is roughly the same, whereas the equal representation of states in the Senate means that the electoral power of a Tasmanian voter, for instance, is much greater than that of a voter living in the much more populous states of Victoria or New South Wales, the homes of Melbourne and Sydney respectively. But those who work on the other side of the building are only too happy to point out that, in their opinion, it actually is the Senate that is the more representative body because the distribution of voters’ preferences among the parties is more accurately reflected in the distribution of Senate seats among the parties than in the distribution of House seats (Evans 1997b: 22–23).

However differently the two houses may assess the electoral ‘reform’ of 1948, they certainly can agree that the introduction of proportional representation for Senate elections reshaped the political relations between the Senate, on the one hand, and both the House and the government, on the other. Consider the view of the Senate that Partridge (1952: 175) expressed before the first minor party Senators arrived on the scene following the 1955 election:

[T]he working of parliamentary and cabinet government has not been substantially affected by its federal setting. The fact is that the element of responsible cabinet government has prevailed over the federal principle for the most part, and cabinet and parliamentary government in this country has not developed in a manner different from British development. If there are important differences between Australian and British parliaments and cabinets, they are traceable rather to differences in the history and the character of the two societies than to problems or conditions created by the existence of federalism in this country.

Table 3.1 documents that the advent of PR created new possibilities for the Senate. The table divides general elections into pre-1948 and post-1948 periods. As it shows, between the emergence of the modern party system in 1910 and the 1948 Act, there were only two brief periods (following the 1913 and 1929 elections) when the government did not hold a majority of seats in both houses. Thirteen of the 15 general elections during this period resulted in one-party (or coalition) control of the House and Senate. Contrast this pattern with the 26 general elections held between 1949, the first time that Senators were elected by PR, and 2001.

Table 3.1: Government strength in the House of Representatives and the Senate, 1901–2001

Year of election

Government

% of seats held by government

House of Reps

Senate

1901

Protectionist

41.33

30.56

1903

Protectionist

34.67

22.22

1906

Protectionist

21.33

16.67

1910

ALP

57.33

63.89

1913

Liberal

50.67

19.44

1914

ALP

56.00

86.11

1917

National

70.67

66.67

1919

National

49.33

97.22

1922

National/Country

52.63

66.67

1925

National/Country

67.11

77.78

1928

National/Country

55.26

80.56

1929

ALP

61.84

19.44

1931

UAP

52.63

58.33

1934

UAP/Country

62.67

91.67

1937

UAP/Country

58.67

55.56

1940

UAP/Country

49.33

52.78

1943

ALP

65.33

61.11

1946

ALP

57.33

91.67

1949

Liberal/Country

60.16

43.33

1951

Liberal/Country

56.10

53.33

1953

Liberal/Country

56.10

51.67

1954

Liberal/Country

52.03

51.67

1955

Liberal/Country

60.48

50.00

1958

Liberal/Country

62.10

53.33

1961

Liberal/Country

50.00

50.00

1963

Liberal/Country

58.06

50.00

1964

Liberal/Country

58.06

50.00

1966

Liberal/Country

66.13

50.00

1967

Liberal/Country

66.13

46.67

1969

Liberal/Country

52.80

46.67

1970

Liberal/Country

52.80

43.33

1972

ALP

53.60

43.33

1974

ALP

51.97

48.33

1975

Liberal/National Country

70.87

54.69

1977

Liberal/National Country

68.55

54.69

1980

Liberal/National Country

58.40

48.44

1983

ALP

60.00

46.87

1984

ALP

55.41

44.74

1987

ALP

58.11

42.11

1990

ALP

52.70

42.11

1993

ALP

54.42

39.47

1996

Liberal/National

62.84

47.37

1998

Liberal/National

54.05

44.74

2001

Liberal/National

54.66

46.05

Italics indicate a government majority in the Senate.
Source: Adapted from Parliamentary Handbook of the Commonwealth of Australia
(29th ed.), Department of the Parliamentary Library, 2002: 588–589.

Table 3.2: Votes and seats won by minor parties in Senate elections, 1949–2001

Year ofelection

Party

% of
vote

Numberof seats

% of seats

1949

None

—

—

—

1951

None

—

—

—

1953

None

—

—

—

1955

ALP (Anti-Communist)

6.1

1

3.3

1958

Democratic Labor

8.4

1

3.1

1961

Democratic Labor

9.8

1

3.2

1964

Democratic Labor

8.4

2

6.7

1967

Democratic Labor

9.8

2

6.7

Others

2.4

1

3.3

1970

Democratic Labor

11.1

3

9.4

Others

5.6

2

6.3

1974

Democratic Labor

3.6

—

—

Liberal Movement

1.0

1

1.7

Others

2.9

1

1.7

1975

Democratic Labor

2.7

—

—

Liberal Movement

1.1

1

1.5

Others

3.6

1

1.5

1977

Australian Democrats

11.1

2

5.9

Others

4.9

—

—

1980

Australian Democrats

9.3

3

8.8

Others

3.1

1

2.9

1983

Australian Democrats

9.6

5

7.8

Others

3.2

1

1.6

1984

Australian Democrats

7.6

5

10.9

Nuclear Disarmament

7.2

1

2.2

1987

Australian Democrats

8.5

7

9.2

Nuclear Disarmament

1.1

1

1.3

Others

3.1

2

2.6

1990

Australian Democrats

12.6

5

12.5

Greens

2.8

1

2.5

Others

2.7

—

—

1993

Australian Democrats

5.3

2

5.0

Greens

2.9

1

2.5

Others

3.8

1

2.5

1996

Australian Democrats

10.8

5

12.5

Greens

2.4

1

2.5

Others

6.7

—

—

1998

Australian Democrats

8.5

4

10.0

Greens

2.7

—

—

One Nation

9.0

1

2.5

Others

4.8

1

2.5

2001

Australian Democrats

7.2

4

10.0

Greens

4.8

2

5.0

One Nation

5.5

—

—

Others

6.1

—

—

Source: Odgers’ Australian Senate Practice 2001: 23–25, and the June 2002 Supplement.

Twenty of those elections produced governments that did not hold a majority of Senate seats. Since the election of 1961, the only time that governments have had majorities in the Senate was during the period following the elections of 1975 and 1977. The introduction of PR for Senate elections unquestionably led to major and lasting changes in the distribution of House and Senate seats among the political parties and, consequently, major and lasting changes in the dynamics of Australian national politics.

Only the first PR elections for the Senate, in 1949, produced divided government in the sense that one of the two major parties (or coalitions) controlled the House and the government while the other controlled the Senate. The pattern in contemporary Canberra has not been one of Opposition control of the Senate, but one of non-government control with ‘the balance of power’ resting with a small number of minor party or Independent Senators who may support the government or the Opposition, or who may swing between one and the other, depending on the issue and the willingness of the government to negotiate compromises with, or make concessions to, them.[38] Table 3.2 shows the percentage of the vote and the number and percentage of Senate seats won by minor party and Independent candidates since the general election of 1949.

Increases in the size of the Senate and, therefore, in the number of Senators to be chosen in each state at each election, have made it increasingly easy for minor parties to win seats (but see Sharman 1986). As we have seen, at a normal half-Senate election at which six Senators are elected in each state, the quota of votes needed to win one of those seats is only 14.3 per cent of the state-wide vote. And when there is an election following a double dissolution and all twelve of each state’s Senate seats are at stake, the quota is cut almost in half, to 7.7 per cent. As the size of the Senate has increased, the magnitude of both quotas has declined. However, the absence of one-party control of the Senate depends as well on the relatively equal support that the two major political forces have enjoyed since the 1949 election. Modern Australian politics has not been characterized by landslide elections. For a party to win four of the six seats contested in a state at a half-Senate election, it would have to win 57.2 per cent of the vote—that is, four times the quota of 14.3 per cent of the votes that is required to win each seat—and, since the increase in the size of the Senate in 1984, no party ever has won such a large majority in any state’s half-Senate election.

Source: Odgers’ Australian Senate Practice 2001: 26–27, and the June 2002 Supplement.

Figures reflect the composition of the Senate after newly-elected Senators have taken their seats.

Table 3.3 presents the party affiliations of Senators since 1909. What is particularly noteworthy is how evenly the Senate has been divided since 1949 between the Australian Labor Party (ALP) and the major non-Labor party or coalition. There were at least two minor party or Independent Senators in office following each of the 18 Senate elections since 1955. Fifteen of those 18 elections produced Senates in which the number of minor party and Independent Senators equalled or exceeded the difference between the number of ALP Senators and the number of Senators representing its major opposition. And half of the 18 elections resulted in two seats or less separating the two major political forces in the Senate. If Labor or its opponents had been able to amass consistent and consistently large majorities in the Senate, the presence of a relatively small number of Independents or minor party Senators would have mattered much less, and perhaps not very much at all.

It is the combination of PR elections for the Senate and the generally equal balance of forces in Australian national politics that has created opportunities for the Senate to exert influence as an independent force in government.[39] As Farrell and McAllister (1995: 247) put it, ‘the history of the Senate has gone through two distinct and contradictory stages: first, when it has been gelded as a result of party control, and, second, when it has been galvanised by party control. The principal defining point of distinction between the two stages has been electoral reform.’ The reform to which they refer, of course, was the shift to PR. But as they indicate, there is a second factor that must be added to the equation: the discipline that prevails within parliamentary parties in both houses and especially in the House of Representatives. If the Labor, Liberal and National parties were relatively loose coalitions of factions, and if factions of one party sometimes found common ground with factors of one or more of the other parties, then minor party and Independent Senators would not have the potential leverage that they enjoy when Labor and its opponents confront each other like armies trained to march in lockstep.

A system of disciplined parliamentary parties

In Chapters 6 and 7, we will be looking at how Senators have voted on divisions—votes on which the position of each participating Senator is publicly recorded. Analysis of comparable votes in the US Congress is complicated and time-consuming because it involves examining the individual voting decisions of 100 Senators (or, even worse, 435 Representatives). Fortunately for our purposes, analysing divisions in the Commonwealth Parliament is much easier because, in 2000 for instance, there are only eight votes in the Senate to be examined: one vote for each of the five parties represented in the Senate and one vote for each of the three Independents. During 1996–2001, which is the time period we will examine in the later chapters, each of the four parties with two or more Senators can, in most cases, be treated for voting purposes as a single entity, because the members of each party almost always vote together. Such is the strength of party discipline in parliamentary voting that defections by Coalition Senators now are rare and defections by Labor Senators are virtually unknown. Since the Coalition returned to government in 1996, only the Australian Democrats and the Greens (when there have been two of the latter serving together in the Senate) have split their votes from time to time.

Party discipline in Parliament is so strong that many analysts now refer to the Commonwealth as not having a system of responsible government but, instead, a system of responsible party government.[40] For Hamer (1991: 41), for instance, ‘What we now have is not a responsible government; it is a party government. Australia has gone to the extreme lengths of viewing all legislation as a vote of confidence and any legislation amended by the House of Representatives against the Government’s wishes as a vote of no confidence in that Government.’ The strength of parties in Canberra reverberates through the political system in many ways and fundamentally affects the relations between the Parliament and the government, and the prospects for enforcing parliamentary responsibility and governmental accountability (Evans 1993a). Here is Elaine Thompson’s summary:

It is the fight in the party room, not on the floor of the house, that is the heart of our system. It is in the party room, not on the floor of the house, that changes in the leadership occur—that prime ministers are forced to yield, that ministers are forced to resign portfolios. The cabinet is not a committee of parliament but a committee of the governing party or parties. Party discipline in the lower house is possible because of the deals done in the backrooms of the party. Sharing of power occurs not between executive and legislature but between the party and its leaders. (Thompson 1980: 37)

In the conclusion to their bicentenary study of the Commonwealth Parliament, Reid and Forrest (1989: 484) identify a ‘trinitarian struggle’ as providing ‘the constitutional and conceptual framework for examining the Parliament in action ... ’ This is puzzling because, for all practical purposes, whatever struggle there may have been between the House of Representatives and the government has been resolved in favour of the latter. The reason lies in the discipline of Australia’s parliamentary parties that has transformed, or relegated, the House to a forum for debate where the government is certain to prevail.

In the first Parliament, elected in 1901, 59 of the 75 seats in the House were held by members associated with Free Trade and Protectionist parties; Labor held 14 of the remaining 16 seats. Two years later, after the 1903 election, the House again was divided among the same three groupings, with Labor picking up nine seats at the expense of the Free Trade and Protectionist members who nonetheless held two-thirds of the seats. In 1909, however, as Labor’s apparent strength continued to grow, the Free Trade and Protectionist parties joined together in what became known in the 1910 election as ‘Fusion,’ reflecting their shared opposition to the ALP and its policies.

The combination of single-member constituencies and preferential voting has contributed to (but has not been the sole cause of) the development of a party system that, for purposes of the House of Representatives, comprises two and one-half parties combined into two opposing forces. One side of the political divide has been occupied since the first days of the Commonwealth by the Australian Labor Party. Since the fusion of 1909, the other side of that divide has been dominated by the Liberal Party or its predecessors, the Nationalist and United Australia parties. Representatives of the National Party or its predecessors, the Country and National Country parties, also have won House seats at each election since 1922, though a smaller number than either the ALP or the Liberals. For most of the time since then, the Liberal and National parties in the House have been in a formal or informal coalition—hence the characterization of the House as comprising two and one-half parties but two opposing political forces.[41] In most cases, the two coalition partners have agreed not to field candidates against each other in House elections. More often, however, each party has run its own candidates and encouraged its voters to cast their second preference votes for the candidate of the other party. Thus, the preferential voting system has protected the Liberal and National parties against the danger that they could split the non-ALP votes in certain constituencies, thereby allowing the election of ALP candidates whom they and most voters opposed.

Just as the threat posed by the growing electoral success of the Labor Party stimulated the fusion of those opposing it, the discipline that Labor imposed on its candidates and MPs compelled its opponents to become equally concerned with maintaining internal party cohesion in parliamentary voting. As early as 1900, the Labor Party required its candidates to agree to a pledge:

I hereby pledge myself not to oppose any selected Labor candidate. I hereby pledge myself if returned to the Commonwealth Parliament to do my utmost to ensure the carrying out of the principles embodied in the Federal Labor Platform, and on all such questions to vote as a majority of the Federal Labor Party may decide at a duly-constituted caucus meeting. (quoted in Jaensch 1992: 243)

Although Labor’s opponents, now the Liberal and National parties, never have required a similar pledge, in practice the voting discipline in the House of all three parties now is almost perfect (except for the occasional ‘free’ votes that the parties sometimes allow on issues of strong personal belief such as abortion, euthanasia, or, in 2002, stem cell research). This is how Dean Jaensch has summarized the situation with regard to the ALP:

The Australian Labor Party is quite open about its demand that its representatives shall be its delegates, and it enforces discipline over parliamentary members with a formal pledge. Members of the party pledge themselves to be bound by the platform and rules of the party and by the decisions of the executive and conference, not to oppose any endorsed Labor candidate at any election and to vote according to the majority decision of the caucus of the parliamentary party on all questions in parliament. They face expulsion from the party if they break any aspect of the pledge. (Jaensch 1991: 136, emphasis added)

With respect to the Liberal Party, the situation is much the same in practice though not in theory:[42]

It is a matter of frequent celebration in Liberal Party rhetoric that in contrast to their Labor rivals, Liberal Members of Parliament are free men and women, able to exercise their minds and judgments as they see necessary. This is true only at the margins. The solidarity of the Liberal Party in parliament is hardly less marked than that of the ALP, and for much the same reasons. (Singleton, et al. 2000: 277)

Even the occasional free votes do not necessarily reflect party decisions to allow their members freedom of choice. Designating a vote as a ‘free’, or ‘conscience,’ vote can be a way for a party to acknowledge intense divisions in its ranks and to avoid the possibility of a revolt inside the party room.[43] When confronted with policy choices on which members’ convictions are so profound that some will insist on going their own way, it can be easier for the party to stand back and take no official position. If the party insists on discipline instead, it then may have to face the embarrassment of defections, possibly coupled with the awkwardness of penalising members for their unwillingness to abandon their individual consciences. And even if party discipline prevails, enforcing the party position still may cause lasting resentment on the part of those members who felt compelled to vote for a party position that contradicted their own intensely held views.

There have been two transformative events in the history of the Commonwealth Parliament. The first was the emergence in 1909–1910 of a disciplined party system; the second was the switch to PR for Senate elections beginning in 1949. The effects of the first event were felt immediately; the second did not affect ‘the numbers’ in the Senate until the 1955 election. To get a feel for how both events changed the Senate, we can take a moment to look at the Senate before fusion and then during the period between fusion and the advent of PR.

Ian Marsh is our guide to the pre-fusion period. In his Beyond the Two-Party System and other writings, Marsh advocates an alternative conception of policy-making in Australia that emphasizes ad hoc coalition building that would escape the constraints of the two-party system with its disciplined party voting in Parliament and its concentration on policy development within ministries and Cabinet. He contrasts (1995: 272–302) the dynamics of contemporary policy-making, and especially the role of Parliament, with the situation that prevailed during the first years of the Federation until 1909, when fusion occurred and the party system coalesced into the Labor Party and a non-Labor bloc. Marsh looks back, with evident wistfulness, on a brief period in which policy-making and coalition-building in Parliament were more fluid than they have been at any time since, even with today’s non-government majorities in the Senate:

Parliament was a substantial arena in the 1901–9 period. This contrasts with the dignified and ritualistic role it has come to play in the two party era. Parliament provided the prism through which cross-cutting aspirations were refracted and refined into programs and measures... . Parties first needed to attract substantial electoral support for their programs. Then governments were created and unmade according to their ability to gather majority support for their measures in parliament. Furthermore, they were required to obtain majorities in two chambers. (Marsh 1995: 283, 292)

In the first ten years, the Senate used its powers regularly against governments. It functioned as the house of minorities it was intended to be, using its committees to gather information and to build opinion among senators. The committees became the key institutional mechanism for investigating strategic issues. There were frequent disagreements between the houses, particularly on tariff issues. Disputes between the chambers were fierce, but accommodations ultimately were reached. Indeed, these cameo dramas became an occasion for public learning. The site of contention was not party conferences or internal party committee processes, but parliamentary committees and debates within and between the houses. The political drama constituted the setting in which the educative role of political investigation and deliberation was more fully realized. (Marsh 1999: 195)

Marsh offers several specific examples of the Senate’s legislative activity before the consolidation of the party system, and its impact on the relations between the two houses in enacting new law. The first case he mentions, the 1902 tariff bill, was discussed in chapter 2. He continues:

Conflict between the houses also arose in relation to the British Preference bill in October 1906. The Senate majority united in rejecting the H of R’s handling of its proposed amendments. The H of R had suggested the amendments were unconstitutional in form. The Senate also sought provisions postponing operation of the coloured labor clause in relation to shipping. The H of R sought an amendment that had the effect of granting preference to British goods irrespective of the means of transit. The Senate held firm after several exchanges with the H of R. The H of R ultimately had three options: to accept the amendments, to persuade the Senate, or to initiate a double dissolution. It accepted the Senate’s proposals. This set the pattern for future relations. (Marsh 1995: 290–291)

I have quoted Marsh at length because he portrays a bicameral legislative process that bears a much greater similarity to the process today than to the process during the four decades between fusion (1909) and PR (1949).

On that period, we have Geoffrey Sawer’s 1963 exposition of the policies and politics of each Commonwealth Parliament from 1929 through 1949.[44] For our purposes, what is most striking about Sawer’s detailed summaries and analysis is how often the Senate largely disappears from view. Certainly this is not an oversight on the part of the author, who was an influential expert on Australian constitutionalism and especially federalism. Instead, the lack of discussion of the Senate in his book can only reflect the fact that, throughout the period it covers, the method of electing Senators tended to produce Senate majorities that supported governments and their House majorities.

There were a few occasions during this period, however, when the government did not have a working majority in the Senate. Even when the party winning a House election also won a majority of the Senate seats contested at that election, it still might find itself without a Senate majority if it held relatively few of the Senate seats that had not been contested. In such cases, Sawer’s picture of the Senate is not unlike that of recent Senates with non-government majorities. An excellent example is the first parliament he portrays, the Twelfth Parliament of 1929–1931, with its ALP majority in the House but not in the Senate. Sawer (1963: 15) points to the calculations that both government and non-government parties had to make then, and since, in such situations: ‘the non-Labor parties, and especially the Nationalists, were so strongly entrenched in the Senate, the party battle in the parliament resolved mainly into a question as to how far the government would go in order to meet Senate majority opinion, and how far the Senate majority would go in meeting government desires in order to avoid provoking a double dissolution.’

In some cases, the results of these calculations led to compromise and, in the case of the Conciliation and Arbitration Bill of 1930, one of the two conferences that the two houses ever have convened:

The Senate, recognizing that the government had a mandate for a general overhaul of the [conciliation and arbitration] system, passed the second reading without division and the main fight was joined in Committee. But the Opposition Senators were divided on a number of major issues, and even at this stage compromise settlements were achieved on many clauses, to the disgust of the more stiff-necked Nationalists.

The Bill returned to the Representatives with thirty amendments; these included many incidental matters to which Labor was strongly opposed ... .

However, the government, to the sorrow of its left-wing supporters, decided to negotiate through managers ... a conference was held at midnight in the last hours of a sitting, and the resulting compromise rushed through two Houses of exhausted members. The Senate insisted on nineteen of its amendments and a further seven were accepted subject to modifications; in detail, it was a Senate victory, but the government gained the substance of its three main principles. (Sawer 1963: 17)

However, the situation prevailing during the Twelfth Parliament was very much the exception during the 40 years between 1909 and 1949, when the hardening of party lines fundamentally transformed the way in which the Parliament usually worked. After the first decade under Federation, parliamentary politics increasingly became bipolar, and almost perfectly so after the emergence of the Liberal-Country/National coalition. For all intents and purposes, there came to be only two political forces in the Parliament—the government and the Opposition—and one or the other controlled the Senate. Party discipline grew stronger, even if it remained somewhat weaker than it now has become. It was the strength of party discipline, when combined with the adoption of PR (a decision we will examine later in this chapter), that created the possibility for today’s political dynamic in Parliament.

It probably is fair to say that the leaders of every party would like to have the dependable support of all their parliamentary members. Yet the degree of unity in parliamentary voting that characterizes Australian parties is unusual among modern democracies. How are we to account for it?

The phrase ‘party discipline’ does not capture the entire relationship between each member of the Commonwealth Parliament and his or her party, at least if that party is the ALP or either member of the Coalition. Party unity in parliamentary voting reflects, in large part, the voluntary cohesion of each party’s members. Although there certainly have been, and are, factions and factional battles within each party, intra-party differences usually have paled in comparison with the policy differences between the parties (though now it often is said—as it has been said periodically since the 1970s—that Labor and the Coalition are moving toward the political centre and, consequently, toward each other). Thus, most members of each party would vote with each other most of the time for reasons of personal conviction even if there were no penalties for ‘crossing the floor’ and voting with the other party instead.

There are at least five other reasons why the levels of party cohesion in parliamentary voting undoubtedly would be very high even it were strictly voluntary. First, a party has a powerful incentive to preserve its own voting cohesion if it anticipates that the other parliamentary parties will vote cohesively. A party puts itself at a terrible disadvantage if it does not actively discourage its members from crossing the floor to vote with the opposition when it knows full well that no opposition members will be allowed to cross the floor in the other direction. One reason for the increased cohesion of the non-Labor parties early in the Twentieth Century was the knowledge that they were facing a highly cohesive Labor Party. Second, parties and their members believe that they will be more successful in presenting themselves to the public as a plausible alternative government if they appear to be united and to speak with one clear voice. A party that seems to be at odds with itself over policy risks appearing to be a party that does not know what it believes, what it is doing as the Opposition, and what it would do as the government. The danger is even greater, of course, for the party that already is in government. And third, the simple psychological effect of peer pressure should not be under-estimated. In a world so full of uncertainties as the world of government and politics, there is great comfort for many legislators in being and remaining a member in good standing of a group with shared interests, concerns, and values.

Fourth, party cohesion can greatly simplify life for Representatives and Senators. The party develops positions for them, saving them the need to study the issues independently, identify and evaluate the various policy options, weigh the likely effects of implementing each alternative policy on their individual electorates as well as the nation, and evaluate how supporting each of the available policy options is likely to affect their own political support and futures. The virtual certainty that members of Parliament will support their parties’ positions also largely immunizes them against demands from constituents and others that MPs vote one way or the other. Members of Parliament are free to express their sympathy with those who approach them but they also may explain that they are committed to support a contrary position taken by their parties. In fact, lobbyists in Canberra generally do not concentrate on efforts to persuade backbench MPs because they have concluded that ‘to lobby individual MPs is a waste of time, energy, and resources.’ (Jaensch 1986: 137)

Finally, Representatives and Senators are fully aware that their prospects for advancement depend on their standing within their parties. In the case of the Coalition, the leader of the Liberal Party—in consultation or negotiation with his National Party counterpart—selects which MPs will join the government and in what capacities. So an ambitious MP has good reason to want to be seen by his or her leaders as a loyal member of the team. In the case of the ALP, it is the parliamentary party that decides which of its members will hold leadership positions; then it is the party leader who allocates these positions among the members chosen in the party room. In either case, an MP with a reputation as a rebel or a maverick or as someone who is out of step with his or her colleagues is less likely to be among those chosen for ministerial (or shadow ministerial) positions than Representatives or Senators of equal competence who always sit with their party colleagues during divisions.

Still, if the incentives for voluntary cohesion are not enough, there are sanctions that party leaders can and do impose to ensure that party unity in House and Senate votes is virtually perfect among ALP members and close to perfect among Coalition members.[45]

Representatives or Senators sometimes oppose their party leaders vociferously in private conversations and behind the closed doors of their parliamentary party rooms. But they may put their careers at risk if they do so publicly and, even more, if they cross the floor to vote against the overwhelming majority of their fellow party members:

Almost every vote in Parliament—regardless of whether it is on a matter of great national importance, on a confidence motion in the government, or on a simple machinery amendment of a very unimportant Bill—is taken as if the life of the government depends on it.[46] As well, every vote is taken as if the decision will play a major part in the next election, and that election is only days away. (Jaensch 1986: 44–45)

There have been members, to be sure, who have been openly critical of their party leaders or their party’s policies, and still have survived politically. Some even have succeeded in replacing the leaders they have criticized: prime ministers Robert Menzies, Malcolm Fraser, and Paul Keating are examples. They must know, however, that if they fail and remain in the House or Senate, they are very likely to be relegated to the back benches for the foreseeable future. Even worse, they may find their parliamentary careers at an end, because the primary sanction that Australia’s parties have to ensure the discipline of their members in parliamentary voting is their influence over the process of selecting candidates for election and re-election to Parliament.

The key fact is that there are no primary elections in Australia, unlike the United States where party members can nominate themselves to become their party’s candidate for a House or Senate seat, and where the other party members in that electorate then vote to choose which of those self-nominated hopefuls will receive the official party endorsement.[47] Instead, the ‘preselection’ process in all of Australia’s major parties is controlled by party activists in a process that often is closed to wider participation and even to public view.

In the Labor Party, preselection processes vary from state to state, but in all states the selection of parliamentary candidates is in the hands of some combination of state and local party members, who, in light of their own commitment to the party, naturally value party loyalty in prospective candidates and in their incumbent Representatives and Senators. If ALP incumbents ever think about voting against the party position, notwithstanding the pledge that they have signed, they must assume that they may well be expelled from the party and, even if not, that they are very unlikely to receive another nomination from the party activists who control their future in electoral politics. In the Liberal Party, too, pre-selection is in the hands of active state or local party members. But ‘the combination of a local emphasis in preselection with Burkean independence provides an environment where party rebels can emerge and prosper’ (Jaensch 1992: 266), at least in comparison with the Labor Party:

The Liberal member, tempted for whatever reason to go against the party line, must consider the effects of such behaviour on his chances to retain endorsement. Those Liberals who have been rebels and who have retained their endorsement have usually done so on the basis of their membership of, or support from, the party’s power elite at the state or local level.

If so, dissidence may not be deadly if it reflects a disagreement between national and state-local party officials or perhaps between factions within the party. Furthermore, Representatives may be able to establish such strong personal reputations with their electorates that, if their seats are marginal ones, their party may be reluctant to risk control of those seats by denying them reselection as punishment for one or more voting defections. Senators, on the other hand, are considerably less likely to be able to develop such protective cushions of public support when each of them is only one of 12 Senators representing an entire state. So although all electoral politics in Australia are party politics, party probably is even more important in Senate elections than in House elections. Furthermore, the mechanics of voting in Senate elections was changed in 1984 in a way that put the fate of incumbent and prospective Senators even more firmly in the hands of the officials of their parties.

Before 1984, the preferential voting system in Senate elections made it possible, at least in theory, for Senators and Senate candidates to promote their elections by capitalizing on whatever individual popularity they enjoyed, rather than relying entirely on voter support for their parties. Voters had to express a preference ordering among all the Senate candidates on the ballot; most important, even if a voter’s first six choices were the six candidates of the same party (in the case of a normal half-Senate election), the voter still could choose—indeed, had to choose—the order in which to vote for each of the six. However, most voters relied on ‘how to vote cards’ that the parties produced, so each voted in accordance with the preference ordering that his or her party recommended. For this reason, the opportunity for Senators, particularly in the most populous states, to develop a ‘personal vote’ was much more hypothetical than real.

The need to assign numbers, in order of the voter’s preference, to all the candidates on the ballot made for a relatively large number of ‘informal’ votes—votes that were not counted because voters had not marked their ballot papers completely or correctly. So in 1984, the electoral law was amended to make it possible for voters in Senate elections to cast a single vote for a party (actually, for the party’s preferences) instead of for individual candidates. As amended in 1984, the electoral law now provides for each Senate ballot to be divided in half, and voters may cast their votes either ‘above the line’ or ‘below the line’ that now divides the ballot. Australians who choose to vote ‘below the line’ cast their votes in the same way that they did before, numbering all the candidates in order of preference. Alternatively, a voter who casts his or her vote ‘above the line’ finds on the top half of the ballot only one box for each party, not separate boxes for each individual candidate. If the voter places a ‘1’ in the box of one of the parties, the voter thereby casts his or her votes in accordance with the preference ordering of all candidates that his or her preferred party has published.[48]

Not only does such ‘Group Ticket Voting’ (GTV) simplify voting, it allows voters to vote for a party, not for individual candidates. The result has been that far fewer ballots are spoiled because most voters now choose to vote ‘above the line’ in Senate elections—in other words, most votes in these elections now are cast for parties, not individual candidates.

The effect of the introduction of GTV has been spectacular. Senate informal voting, which averaged 9.4 per cent in the five elections prior to the change, has been just 3.7 per cent in the five elections since. In addition, the overwhelming number of electors [85.7 per cent] voted ‘above the line’ in the first use, and the proportion of GTV votes has continued to rise until nearly 95 per cent voted in this way in 1996 ... . No doubt this has been very satisfying for party managers, for each vote above the line is a vote in a party-preferred order, and to that extent is a vote controlled by a party. (Bennett 1996: 56)

The party determines the order in which its candidates (as well as all other candidates) are preferred by all the voters who vote for the party ‘above the line’. In turn, this means that the fate of each party candidate is every bit as much in the hands of the party’s officials as it is in the hands of the voters. A Senator or Senate candidate who is in the good graces of those party officials can hope to be ranked first or second among the party’s candidates, whereas a Senator who has fallen out of favour with the same party officials may be relegated to a lower position. The difference is critical. The candidates that each major party or coalition ranks first or second on its list of six for a half-Senate election are almost certain to be elected; those ranked fifth and sixth are almost certain to be defeated. The third-ranked candidate will win if his or her party does well in the election; the fourth-ranked candidate will win only in the event of a landslide victory.

This also was true before ‘above the line’ voting because voters tended to vote for their party’s candidates in the order in which the party chose to have listed on the ballot. In the first PR election, in 1949, seven Senators were elected from each state.[49] In anticipation of that election, the then-Clerk of the Senate, J.E. Edwards (1948: 244), wrote that:

One of the results of the new system of voting will be that in actual practice the choice of most of the Senators will be made in party pre-selection ballots. With 7 candidates to be elected each of the two major parties seems assured of 3 seats while the remaining seventh seat will be determined by the electors.

Scott Bennett (1996: 88–89) explains that, in contemporary half-Senate elections, with six Senate seats at stake in each state, ‘a major party realistically can expect to win a maximum of three of the six Senate seats being contested—to win four would require a highly unlikely party vote of 57.2 per cent.’[50] There is nothing particularly subtle about this. Any Senator who is thinking about voting against the party’s position on an issue of consequence certainly is aware of this calculus and how offending his or her state party can affect the Senator’s prospects for re-election. Consider the case of the first Aboriginal to be elected to the Senate:

In 1972 the Liberal Party earned many plaudits for selecting Neville Bonner as a Senate candidate, and Bonner duly became the first Aboriginal member of any parliament in Australia. Early in his term, Bonner was prepared to defend the Coalition policies on Aboriginal matters, but he gradually swung to a more pro-Aboriginal stance, infuriating Queensland Liberals and Nationals, who accused him of being too ‘one-sided’ in his performance as a Senator. Eventually the Liberal Party dropped him to what was considered an unwinnable position on the party list for the 1983 election. Bonner resigned from the party and stood as an Independent, a tactic that very nearly won him back his seat, for he was the final candidate to be eliminated from the count. (Bennett 1996: 91)

While PR may have weakened the position of the two major protagonists in the Senate vis-a-vis the minor parties and Independents, the 1984 ‘reform’ has strengthened the position of each of the two major parties vis-a-vis their own Senators and Senate candidates.[51]

One question remains: why have Australia’s political parties been so intent on maintaining strict party discipline? One reason is the Labor Party’s historic sense of itself as a movement as much as a party, a group of like-minded people who come together in support of a common cause rather than a set of shared policy views or even an ideology. Its Representatives and Senators are elected to office as representatives and agents of the movement, so it is appropriate to hold them to a strict standard of discipline. According to Reid and Forrest:

In a system in which the assumption of Executive office depended upon obtaining and maintaining a majority in the House of Representatives, the Labor Party quickly recognized the importance of organisation and discipline. These, in fact, were qualities to which, in 1901, many Labor members already subscribed, partly as a legacy of the practices and traditions of the union movement and partly as a result of the experiences of the colonial parliamentary Labor parties. (Reid and Forrest 1989: 14)

For the non-Labor parties, an emphasis on discipline in practice, though not in principle, has been an essential tactical response to the challenge of a dependably united Labor Party. In addition, though, Evans has argued that strict party discipline in Canberra reflects the importation of a mistaken understanding of party discipline under the ‘Westminster model’ which so many Australian politicians and political analysts claim as their own. According to Evans (1982: 49), the ‘Westminster model’

is held to demand that a government which is defeated on even the most trivial matter in the lower house immediately resign or call an election. ... This curious belief helps to ensure that party discipline in Australia is so much more intense and rigid than it is in almost any other democratic country, including, of course, Britain. Members of parliament are imbued with a notion that governments must by definition be supported by every vote in the lower house, or a collective resignation or an immediate dissolution will ensue, and they very seldom deny their party their votes, as members of the British House of Commons do, if not with regularity, at least with sufficient frequency apparently to involve complete departure from the ‘Westminster System’ in the land of its origin.

We do not know what Australian MPs have in mind when they think or speak about the ‘Westminster model,’ so we cannot judge how their understanding of it may affect their voting behaviour. However, savvy party leaders might very well include references to the model and the behaviour it demands among the arsenal of rhetorical weapons that they deploy to ensure that all their troops head in the right direction when the division bells ring in the House or Senate chamber.

To summarize a complicated story, the use of proportional representation for electing Senators has made it very likely that Australian prime ministers will continue to lack party majorities in the Senate, and the highly disciplined nature of Australia’s national parliamentary parties make it very unlikely that the government will be able to cobble together majorities in the Senate by picking off a handful of Senators who are willing to vote against their own party colleagues. The results of Senate votes, therefore, are determined by the collective, unified positions of the major and minor parties, as well as the positions of however many Independent Senators there happen to be at the moment. How the different parties cope with this situation is the primary focus of Chapters 6 and 7. But there is much ground to be covered before that, beginning with the obvious and interesting question: how did the parties and the Senate come to find themselves in this situation?

The shift to proportional representation

During almost all of the first 50 years of experience under the Constitution, the potential for conflicts that are implicit in it were limited by the ability of governments, especially after the party fusion of 1909, to secure majorities in both houses. The import of the data presented earlier on government strength in the House and Senate can easily be summarized: before the 1949 election, the government party or coalition usually, but not always, also held a majority of seats in the Senate; after that election, the government party or coalition usually, but not always, did not. Before 1949, there were only two occasions—in 1913–14 and again in 1929–31—when the Opposition held a majority of Senate seats. Then in 1948, the method of electing Senators was changed in a way that led ultimately to a reversal of this situation, so that contemporary governments usually have faced non-government majorities in the Senate. Solomon (1986: 17) is not alone in having concluded that ‘Under the latest electoral system used in the Senate, it would be most unusual for any Government to have a majority in the Senate.’

Clearly, then, the decision made in 1948 to switch to a system of proportional representation for electing Senators has made a difference. We already have noted some of the consequences of this decision; several chapters to follow will elaborate, in one way or another, on other consequences for the role of the Senate and for the relations between the Senate on the one hand and the House of Representatives and the government on the other. It is natural to ask, therefore, why the 1948 decision was made and whether it was intended and expected to lead to significant changes in the dynamics of the Commonwealth’s political system.

The conventional, perhaps cynical, explanation is that Ben Chifley’s Labor Government was motivated in 1948 primarily by calculations of short-term political advantage. ‘Labor knew that it would lose the 1949 election (and probably most of its contested Senate seats) and so devised this change to consolidate its parliamentary power base in the Senate to frustrate the expected Menzies government.’ (Uhr 1999b: 1) Going into the 1949 election, Labor enjoyed a 33–3 Senate majority. So by instituting PR, it hoped to ensure that the ALP would come out of those elections still enjoying a Senate majority even if it lost control of the House. Fusaro (1966: 390) explains:

Because of the staggered system by which senators retire, eighteen members of the upper chamber did not have to stand for re-election in 1949. Fifteen of these were laborites. Due to the increase in the size of the senate from thirty to sixty members in accordance with the Representation act of 1948, forty-two senators were chosen in the 1949 election. Labor, with the buffer of a majority of the non-retiring senators, and with the expectation that proportional representation would result in a near-even split among the new senators, felt assured of keeping its majority in the senate.

And so it came to pass. Labor emerged from the 1949 election with a 34–26 majority in the (now enlarged) Senate, but with only 47 of 121 seats in the House.[52]

Robert Menzies, the Leader of the Opposition, could hardly have been surprised. During the 1948 debate, he said of the Labor Government’s plan that ‘It is no more subtle than hitting a man over the head and taking his purse while he is unconscious.’ But he preferred to find an argument of principle to support his opposition to the bill, arguing that, ‘although a formidable case can be presented for altering the method of electing the Senate, and although a very strong case can be made for introducing proportional representation, no case whatever can be made for having one part of a popularly elected legislature elected under one system and the other part of it under another.’[53] This is a particularly interesting assertion because it was the switch to PR for the Senate that created the possibility, and now perhaps the inevitability, of non-government majorities in the Senate. Surely any government frustrated by the Senate would sympathize with Menzies’ argument; any advocate of the Senate as a check on the government and the House would disagree just as strenuously.

John Uhr argues that the explanation of short-term political self-interest ‘is true as far as it goes,’ but that there was more to it than that. He explains, for instance, that there had been long-standing interest in and support for proportional representation, and urges us to think of the 1948 decision not as a new-fangled innovation, but as ‘the final stage in a frequently-deferred plan of parliamentary reform that goes back to Federation’:

Even before Federation, many prominent constitutional framers had expected the first Parliament to legislate for proportional representation for the Senate. Sure enough, the Barton government included Senate proportional representation in the original Electoral Act, but this was rejected in the Senate on the plausible ground that it would undermine the established conventions of strong party government. But over time even the partisans of strong party government came round to see the merits of the original plan.[54]

Support for PR had been expressed during the constitutional Conventions, during parliamentary consideration of the first electoral law, and thereafter. During consideration of the Electoral Bill 1902, Senator O’Connor, the minister in charge of the bill, endorsed PR for Senate elections:

If we wish to have our Parliament made a true reflex of the opinion of the people, we must abandon once and for all the system of the block vote, a system which is absolutely uncertain in its operation and its results, and which leads at best to a majority only being represented. ... The effect of this proportional representation will be that we shall be able to secure the representation of the true majority; that a majority will be represented by its true value, and no more. Any minority which is large enough to have a quota will be represented, and, therefore, the Legislature will be a true reflex of opinion outside. (Commonwealth Parliamentary Debates, 31 January 1902: 3541–2)

The Parliament ultimately disagreed and rejected PR. Uhr (1998: 112) contends that the decision was based ‘chiefly on the correct perception that it would introduce a war of representation into the new federal parliament, probably challenge the conventions of cabinet government ... and increase the potential of the Senate to compete for popular legitimacy with the House.’ Reid and Forrest (1989: 103) argue simply ‘that, despite their claims to neutrality, the established major parties did not want any new parties entering Parliament to upset the status quo.’ In support, they quote Senator John Clemons: ‘What we want is not the representation of minorities in each State. I say at once that this Senate is not the place where all these various shades of opinion should find representation.’ I see no need to choose between these two explanations; there is nothing politicians like better than finding arguments of principle that just happen to justify decisions that are in their self-interest.

O’Connor’s argument foreshadowed the arguments that would be made in support of proportional representation in 1948 and even today. Precisely because of PR, some contemporary observers find in the Senate a forum for the representation and expression of Australia’s diversity that the House, with its disciplined de facto two-party system, cannot provide. Ward (2000a: 70) aptly refers to ‘a credible, if opportunistic, theory of democratic pluralism,’ by which ‘Pluralists like Brian Galligan, Campbell Sharman, and Harry Evans argue that dispersing power away from the executive reflects the diversity of modern society and the fragmentation of modern party politics better than does party duopoly in the lower house.’ This argument is exemplified by the following rationale for bicameralism in Odgers’ Australian Senate Practice (2001: 4):

Bicameralism is in practice necessary to achieve a parliament truly representative of the people. Bicameralism helps to improve and enhance the representative quality of a parliament and to ensure that it is representative in a way in practice not achievable in a unicameral parliament. Modern societies are complex and diverse; no systems of representation are, of themselves, capable of providing a truly representative assembly. Adequate representation of a modern society, with its geographic, social and economic variety, can be realised only by a variety of modes of election. This is best achieved by a bicameral parliament in which each house is constituted by distinctive electoral process. A properly structured bicameral parliament ensures that representation goes beyond winning a simple majority of votes in one election, and encompasses the state of electoral opinion in different phases of development.[55]

This continuity between arguments made at the Conventions and in the first Parliament and those being made today lend support to Uhr’s conclusion that ‘the 1948 decision is part of an evolution of Australian parliamentary institutions that gives due recognition to a form of political representation long anticipated as an essential component of the Australian constitutional system.’ ‘Seen in historical perspective,’ therefore, ‘the 1948 turn to PR was not really a regrettable detour, as some would have it, but more of a homecoming.’ (Uhr 1999b: 30, 32; also Uhr 1995a)

In trying to explain why political institutions change, however, it is never a good idea to rely too heavily on arguments of principle. In addition to Chifley’s short-term political interests, there was another, practical reason to support some change in the existing system for electing Senators. There are plausible arguments to be made in favour of either plurality or proportional electoral systems. In Australia, however, some of the election results before 1948 had been so lopsided as to discredit plurality elections and to strengthen the argument that the existing electoral system simply was too unfair to retain. In 1948:

there was a lingering sense of dissatisfaction with the traditional Senate electoral system, which produced huge majorities in turn to whichever political party built up House of Representatives majorities. This ‘block vote’ system was included in the original Electoral Act of 1902 and was revised to include preferential voting from 1919. The practical result of this system was the so-called ‘windscreen-wiper effect’, which delivered almost all contested Senate seats in each state to whatever political party achieved a majority. Senate majorities oscillated wildly between the two major political parties (Labor and successive non-Labor coalitions), both of which could expect to take their turn as the majority party in the Senate. The first two Senate elections after the establishment of the 1902 Electoral Act saw a relatively even ‘two third: one third’ distribution of Senate seats. But once the political parties became consolidated, the system began to deliver disproportionate victories to whichever party was riding high with the passing electoral majority: Labor won all of the 18 seats on offer at the 1910 election; non-Labor won all on offer at the 1918 and 1925 and 1934 elections; and Labor won all Senate seats at the 1943 election and 15 of the 18 on offer at the 1946 election.’ (Uhr 1999b: 3–4)

The electoral system usually benefited the party in government, as we have seen. When it did not, the consequences for the government were severe. Gavin Souter reminds us of the situation that Scullin’s Labor Government confronted in 1929 when it took office and found itself face-to-face with an overwhelmingly hostile Senate:

Scullin was taking office with the largest one-party majority ever achieved in the House of Representatives, but in the Senate his Government would still have only seven votes compared to the Nationalist Party’s twenty-four and the Country Party’s five. Frank Anstey [a leading Labor MP], borrowing aptly from Julius Caesar, wrote in his memoirs that on coming to power the Scullin Government found itself ‘sitting on the eggs of the serpent’—eggs which, in Brutus’s words, should be killed in the shell lest, being hatched, they follow their nature and grow mischievous. The Senate was an egg that could be crushed, in the event of disagreement between the houses, if the Government had sufficient resolve to seek a double dissolution which might give it control of both houses. Anstey himself advocated such a course, but few of his colleagues fancied the idea. After thirteen years in Opposition most of them were looking forward to office, with or without power, and were not in the least anxious to play double or quits. By the same token the Senate majority was in no hurry to meet the people either, and so the main questions of the twelfth Parliament would be how far the Government was prepared to restrain its demands on the hostile Senate, and how much the Senate was prepared to give the Government—a delicate balancing act performed in the mutual interest of avoiding premature election. (Souter 1988: 257; and see also Denning 1946: 53)

The result was that at least fourteen government bills were defeated in the Senate during that Parliament:

The role of executioner sat strangely on a Senate which for more than two-thirds of the Commonwealth’s three decades had been controlled by the same political forces as the House of Representatives, and in consequence had usually been far more inclined to meet the wishes of that place than otherwise. Having long since exchanged the role of States’ House for that of lower house’s rubber stamp, the Senate was sometimes referred to by outsiders as the morgue ... (Souter 1988: 261)

There was a ‘feast or famine’ quality to Senate elections before the switch to PR beginning with the election of 1949. Throughout most of the period from 1903 to 1946, Australia had a reasonably competitive two (or two and one-half) party system. There were periods when one party was stronger than the other, but the electorate remained fairly evenly divided between them. Yet Senate elections consistently produced extreme and wildly fluctuating results, results that did not always favor the government. On two occasions, in 1913–14 and again in 1929–31, the government party held only seven of 36 Senate seats.

Table 3.4: Percentage of seats won by the Australian Labor Party in Senate elections, 1903–1946

Year of Election

Seats Won by Labor (%)

1903

73.7

1906

22.2

1910

100.0

1913

61.1

1914

86.1

1917

0.0

1919

5.3

1922

55.6

1925

0.0

1928

36.8

1931

16.7

1934

0.0

1937

8.4

1940

15.8

1943

100.0

1946

83.3

Note: all elections were half-Senate elections except for the double dissolution election of 1914 at which all 36 Senators were elected.

Source: adapted from Fusaro (1967: 330)

Table 3.4 shows the percentage of seats won by the ALP at Senate elections from 1903 through 1946, the last non-PR election. That percentage fluctuated as much as it possibly could: twice Labor won every seat that was contested: three times it lost all of them. The percentage of seats that Labor won increased 77.8 per cent from the 1906 to the 1910 election, dropped 86.1 per cent from the 1914 to the 1917 election, and increased 84.2 per cent from the 1940 to the 1943 election. In only one of these elections did the Labor Party win between 40 and 60 per cent of the seats that were contested (55.6 per cent in 1922)—the range of outcomes that we would expect to find most if not all the time in a competitive party system.

The 1934 election had given 33 of the 36 Senate seats to the United Australia and Country parties, leaving only three for Labor.[56] Twelve years later, the 1946 elections produced precisely the opposite result, giving the ALP 33 seats with only two going to the Liberals and one to the Country Party. To be sure, not all the pre-1949 elections had produced such one-sided results. Following 15 of the 18 pre-1949 elections, however, the government held less than 40 per cent or more than 60 per cent of Senate seats. By contrast, 11 of those 18 elections gave the government between 40 and 60 per cent of all House seats. Senate elections had produced considerably more unbalanced and disproportionate results than had House elections, and this was especially the case in 1946, which produced the Parliament that chose to institute PR for future Senate elections. Writing in that year, Denning explains why the results of Senate elections so often were so lopsided:

As the party trend in voting for the Senate usually follows the trend in the elections for the House of Representatives, each State usually manages to return a bloc of three members of one particular party. That is helped by the preferential system of voting, which gives an almost unassailable advantage to the fellow-candidates of the party-nominee who gets the highest individual score of primary [first preference] votes. His preferences invariably carry number two and number three on the party ticket in with him, though their primaries might be far below the primaries scored by leading candidates of other parties. (Denning 1946: 61)

Characterizing the Senate in 1941, Souter argues that such exaggerated election results had been accompanied by a decline in the quality of representation in the Senate:

The Senate at this time bore little resemblance to the brave hopes expressed for it at the federal conventions. Political parties had tightened their hold on senators, particularly since the introduction of preferential voting, and it was fair to say that the calibre of senators had deteriorated. ‘With a few exceptions’, wrote one observer, ‘it was a chamber of ageing party hacks and superannuated servicemen from World War I. It had a high proportion of heavy drinkers’. In 1941 the Senate was again functioning as a rubber stamp. ... As Curtin [the Labor Prime Minister] well knew, however, a tame Senate could easily become a hostile one if the lower house came under different management. (Souter 1988: 338)

‘By 1949,’ writes Thompson (1999: 42), ‘the Senate, while not quite moribund, was largely regarded as a weak institution, irrelevant to the conduct of politics.’

Such concerns were coupled with others about the consequences of enlarging the House, which was a primary interest of Labor. Because of the constitutional ‘nexus’ between the sizes of the two houses, increasing the membership of the House required a proportional increase in the membership of the Senate. Uhr quotes the then Clerk of the Senate as having argued ‘that to continue a system which might result in a Senate of 60 members all belonging to one party would make a farce of Parliamentary government.’ (John Edwards, quoted by Uhr 1999b: 16) In support of the Commonwealth Electoral Act 1949, therefore, the Attorney-General, Dr. Evatt, argued, according to Souter (1988: 395–396), that:

proportional representation, a system used in Eire and Tasmania, was fairer than the preferential block majority system currently in use, and more likely to enhance the status of the Senate. The preferential system had the advantage of usually producing a clear-cut majority; but unless there was a nearly equal and opposite swing at successive elections, the majority could be inordinately large and so unrepresentative of the national electorate as to make a mockery of serious debate.

Uhr also points out that by eliminating the wild swings that had characterized Senate elections, PR promised protection to both the ALP and the Coalition against the danger of electoral devastation. Before 1949, each electoral combatant faced the prospect that, when it was in government, it was likely to have a Senate majority much larger than it needed, and that, when it was in Opposition, it was likely to have too few Senate seats to make any difference. Proportional representation, on the other hand, ensured more stable and comparable levels of representation in the Senate for both Labor and its opponents:

[A] primary intention of the major parties who initiated and supported the change was to secure a guaranteed minimum of Senate representation for the established political forces which alternated in government and opposition. ... The 1949 changes were made by the major parties from a position resembling the ‘veil of ignorance’ so celebrated by the political philosopher John Rawls, when the most acceptable decisions about rules for the allocation of goods are made in ignorance of a party’s post-decision strength or weakness: not knowing whether you are going to be in government or opposition, it is in your interests to devise inclusive rules which share power between both camps. ... In this case, of course, both the major political forces knew that there was a fair chance that they would spend at least as much time in opposition as in government, even if their hopes were high that the time in opposition would come later rather than sooner. (Uhr 1998:142)

So Uhr (2001a: 277) can say in summary that PR was recognized in 1948 ‘as the revival of a long-discussed option to bring party balance to the Senate that would be in the long-term interests of both major party blocs, and as a newly discussed option to provide Labor with a short-term parliamentary power base through the one-off transitional arrangements to the larger Senate which would benefit Labor given its existing domination of Senate numbers.’

The question remains, however, whether in focusing on the likelihood that PR would prevent such gross imbalances as the 1946 election had produced, the government paid insufficient attention to the possibility of an exactly opposite outcome: that PR could result in the Senate being so evenly divided between the ALP and its opponents that the balance of power might well rest in the hands of a small number of minor party or Independent Senators. Was the switch to PR, as Galligan (1995: 145) has claimed, ‘a Labor initiative that was not well thought out’?

Campbell Sharman (1999: 151) has addressed this question, contending that, ‘whatever the intent of the Chifley government in accepting PR for Senate elections from 1949, the creation of a forum for an active role for minor parties was not one of them.’ So, he asks ‘whether the effect of PR in enabling the representation of minor parties in the Senate and in creating the likelihood that they would hold the balance of power was simply the result of a massive miscalculation. In other words, was the representation of minor parties a reasonably foreseeable result of adopting PR for the Senate, and could their pivotal role in the control of Senate majorities have been predicted?’

If Members and Senators had foreseen in 1948 that the advent of PR would lead to minor parties being represented in the Senate, the fairly even balance, then as now, between voters’ support for the ALP and for the Liberal-Country (now National) coalition should have led them to predict that minor party Senators might well hold the balance of power—from time to time, if not as a matter of course. But Uhr (1999b: 7) argues that ‘The major parties which managed the transition to a PR system gave little thought to the possible effects in encouraging the formation of minor parties, even though the historical case against PR was that it would jeopardize the conventions of strong party government.’

In defense of the Chifley Government, however, Sharman argues that it was not as clear then as it is in retrospect that PR would lead to regular minor party representation in the Senate. He observes that the percentage of votes that minor parties had received during the two decades before the 1949 half-Senate election had never reached the level that was needed to win a Senate seat after PR was instituted in 1948. In other words, if government and parliamentary leaders had calculated what the quota required to win a Senate seat was likely to be during the next forthcoming election, they might well have concluded that, based on past performance, no minor party would receive that percentage of votes. ‘Excepting the Country Party [which was not a minor party for these purposes] ... the vote for most minor party and Independent candidates was far less than 10 per cent and highly variable between elections’ when ‘the quota required for winning one of the five seats available at each half-Senate election after 1949 was 17 per cent of the vote in each state.’ Furthermore, ‘There was no evidence of a pool of disaffected voters who might use the Senate to vote for any party other than the established ones.’ (Sharman 1999: 152)

In other words, the results of past elections did not indicate that minor parties were likely to receive enough votes under PR to achieve Senate representation. ‘[T]here was reason to believe that the quota for gaining representation under the PR system adopted for the Senate in 1948 was sufficiently high to exclude minor parties except in the special case of the Country Party. The experience of the first three Senate elections with PR in 1949, 1951 and 1953 confirmed this belief.’ So ‘In light of the evidence available in 1948, a strong argument can be made that the representation of minor parties in the Senate other than the Country Party (now the National Party) could not have been predicted.’ (Sharman 1999: 153, 151). However, the political reasoning that evidently prevailed in 1948 assumed that the shift to election by proportional representation would not affect voters’ choices—that voters would continue to vote under PR in the same way they had voted before PR.

Between the ‘fusion’ of the Freetraders and Protectionists in 1909 and the introduction of PR at the 1949 election, minor parties had failed to secure representation in the Senate.[57] Senators had been affiliated with the ALP or with one of the two non-Labor parties. Although the introduction of proportional representation made it easier for minor parties to achieve Senate representation, the effect was not immediate. In the first three Senate elections under PR—in 1949, 1951, and 1953—no minor party Senators were elected. Following the 1955 election, however, the major party Senators found that they had two Democratic Labor Party (DLP) colleagues, a development that undermined the argument that Australians who voted for the DLP or any other minor party were wasting their votes.

The political event of the split in the ALP created the DLP with sufficient support in one state [Victoria] to secure the election of a DLP senator. This gave the new party the ability to use the Senate as a forum for publicising the party’s views, and raised the visibility of both the Senate and the DLP. When this was reinforced by the dependence of the government on DLP senators for the control of the Senate, the DLP had a powerful lever to keep their policy agenda before the public. The conclusion is that, once a minor party had been elected to the Senate and had held the balance of power, a clarion call was sent to parties and voters that PR in the Senate could be used by a minor party with great effect to influence government policy. By the mid-1960s, enough voters were persuaded to view their Senate vote in this way to ensure that a steady stream of minor party and Independent candidates were elected to the Senate. (Sharman 1999: 154)

The DLP continued to win seats in the next five Senate elections and, although it disappeared from the Senate in the 1970s, the candidates and supporters of the minor parties that followed it could point to its example. According to Solomon (1986: 144), the ‘principal aim’ of the DLP was ‘to keep the Labor Party from winning government.’[58] By contrast, the Australian Democrats, who succeeded the now-defunct DLP in the Senate in 1977, ‘claimed to be a centre party aimed explicitly at using their balance of power in the Senate to moderate the activities of the government.’ (Sharman 1999: 155) Since then, the Democrats have retained seats in the Senate but never have elected a Member of the Commonwealth House of Representatives.

This has meant that the Democrats have consistently regarded the legislating and scrutinising functions of parliament as their overwhelming concern. This has distinguished them from the DLP as well as from the major parties. As far as the Democrats are concerned, there is an almost perfect match between their partisan interests and the perpetuation of a strong Senate free from control by either government or opposition majorities. (Sharman 1999: 155)

Sharman concludes that, whatever the intentions and expectations of the Chifley Government in 1949, ‘the effect [of introducing PR for Senate elections] was to establish a symbiotic relationship between minor parties and the Senate—the greater the influence of minor parties in the Senate, the more visible the Senate became to the public and the more publicity minor parties got for their policies. The DLP had started a revolution in the perception of the role of the Senate and the potential of PR for reflecting the views of any minor party which could generate around 10 per cent of the state-wide first preference vote at Senate elections.’

The implication of this line of argument is that, in opting for PR in 1948, the ALP Government of the day failed to anticipate that changing the way in which Senators were elected would eventually affect how at least some Australians made their voting decisions. As a result, the record of prior Senate elections proved to be an imperfect predictor of future election results. This lack of foresight proved particularly ironic and unfortunate for Labor because the first minor party to secure and retain Senate seats had splintered from the ALP and usually, but not always, voted with the Coalition Government.

Australians have become somewhat more inclined to vote for minor party candidates for the Senate. Stone presents data showing that the combined vote in Senate elections of the ALP and the Coalition declined from 95.3 per cent in 1949–1953 to 83.4 per cent in 1977–1996. Although it would be foolhardy to attribute this trend to any single factor, ‘it has been suggested ... that these [minor] parties are now valued and supported for the contribution they make to the governmental process’ (Stone 1998b: 217–218), a contribution that takes place by virtue of their representation in the Senate. In turn, a rising vote for minor party (and Independent) Senate candidates makes it that much more unlikely that either the ALP or the Coalition will succeed in securing a Senate majority in its own right, and so tends to ensure that minor parties will continue to hold a pivotal position of power in the Senate.[59]

Moreover, because minor parties derive their influence from their representation in the Senate, they have an incentive to support and strengthen the Senate as an institution, an incentive that is not shared by either the government or the Opposition.

Minor party and Independent senators who hold the balance of power [in the Senate] are not more virtuous or more public spirited than other senators; it is just that they have an interest in establishing procedures to enhance the long-term effectiveness—and hence political visibility—of the Senate. In this respect, the interests of minor parties and Independents correspond with a broader public interest. The maintenance of a legislative body which has a role to play that is distinct from the partisan struggle to hold or gain government means that a wider range of interests can be involved in the legislative process than those identified with the government or the opposition. (Sharman 1999: 150)

For the Opposition, the Senate is a valued fortress behind the walls of which it can protect itself from being overrun by the numerically superior forces of the government in the House, and from which it can sally forth from time to time to fight the government on a battlefield that reduces or eliminates its numerical disadvantage. So the Opposition also has a short-term interest in making sure that its Senate fortress is solidly constructed and that it is well-armed and well-supplied. However, as I shall argue later in a different context, the Opposition naturally sees itself as the future government that has to rely on the Senate only temporarily while it rebuilds its strength and heals the wounds it suffered at the last election. Its inevitable role, it believes, is as the dominating, conquering army of government. Consequently, its concern with the Senate as an institution is more transitory than that of the minor parties whose influence will be exercised through the Senate for the indefinite future.